MOORE, et al v. CHERTOFF

Filing 772

MEMORANDUM ORDER denying 757 motion for reconsideration and denying motion 769 for leave to file a surreply. Signed by Chief Judge Richard W. Roberts on 3/4/14. (lcrwr2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
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)
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Plaintiffs,
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v.
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JEH JOHNSON,
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Defendant.
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______________________________)
REGINALD G. MOORE, et al.,

Civil Action No. 00-953 (RWR)

MEMORANDUM ORDER
Plaintiffs, African-American current and former special
agents of the United States Secret Service, bring this employment
discrimination action individually and on behalf of a class of
African-American special agents.

The government moves to

reconsider the court’s September 3, 2013 Order (“Order”) denying
its request to reopen discovery.

Because the government fails to

show that reconsideration is warranted, the government’s motion
will be denied.
The government moves under Federal Rule of Civil Procedure
54(b) to reconsider the Order denying the government’s request to
reopen expert and fact discovery.

Def.’s Mot. for

Reconsideration of Sept. 3, 2013, Order Denying PostCertification Fact and Expert Discovery (“Govt.’s Mot.”).

The

case was referred to Magistrate Judge Robinson to manage
discovery proceedings.

Fact and expert discovery closed in 2008

- 2 and the class was certified in February 2013.

The government

initially asked to reopen discovery in the parties’ July 29, 2013
Joint Status Report, stating that the government “may explore
additional areas of expert statistical evidence” and it “has a
right to seek fact discovery from the class members as to the
issue of liability and damages.”

July 29, 2013 Joint Status

Report and Proposed Order (“July 2013 JSR”) at 7.

The government

asserts that it was unable to engage in this discovery before now
because it “did not know at that time that these individuals
would be presenting anecdotal evidence on behalf of the class”
and “now that the class is defined, defendant will seek to depose
other now identified class members.”

Id.

This request was

denied at a status hearing held on July 31, 2013 and in the
Order.
Courts may reconsider any interlocutory decision, such as a
discovery ruling, “at any time before the entry of a judgment
adjudicating . . . all the parties’ rights and liabilities.”
Fed. R. Civ. P. 54(b); see also DL v. District of Columbia, 274
F.R.D. 320 (D.D.C. 2011) (denying motion to reconsider discovery
ruling under Rule 54(b)); Husayn v. Gates, 588 F. Supp. 2d 7
(D.D.C. 2008) (granting motion to reconsider discovery ruling
under Rule 54(b)).

“[R]elief upon reconsideration . . . is

available ‘as justice requires.’”

Estate of Botvin ex rel. Ellis

v. Islamic Republic of Iran, 772 F. Supp. 2d 218, 223 (D.D.C.

- 3 2011) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C.
2000)).

Under this standard, a court considers “whether [it]

patently misunderstood the parties, made a decision beyond the
adversarial issues presented, made an error in failing to
consider controlling decisions or data, or whether a controlling
or significant change in the law has occurred.”

In Def. of

Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C.
2008) (internal quotation marks omitted).

“However, in order to

promote finality, predictability, and economy of judicial
resources, as a rule [a] court should be loathe to [revisit its
own prior decisions] in the absence of extraordinary
circumstances such as where the initial decision was clearly
erroneous and would work a manifest injustice.”

Pueschel v.

Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d 82, 85
(D.D.C. 2009) (alterations in original) (internal quotation marks
omitted).

Nor is a motion for reconsideration to be used as an

opportunity to rehash arguments previously made and rejected.
Michilin Prosperity Co. v. Fellowes Mfg. Co., Civil Action No.
04-1025 (RWR), 2006 WL 3208668, at *1 n.1 (D.D.C. Nov. 7, 2006).
“[W]here litigants have once battled for the court’s decision,
they should [not] be . . . permitted[] to battle for it again.”
Pueschel, 606 F. Supp. 2d at 85 (alterations in original)
(internal quotation marks omitted).

- 4 The government’s motion reiterates that discovery should be
reopened and that it would be prejudiced by a refusal to reopen
discovery.

However, as the government points out, it made these

very arguments at the hearing.

See Govt.’s Mot. at 11.

The

government has not shown that the Order resulted from any
misunderstanding, or exceeded the scope of the parties’
arguments, or failed to consider information presented.

See

Negley v. FBI, 825 F. Supp. 2d 58, 60-61 (D.D.C. 2011).

To the

contrary, the transcript reflects consideration of the
government’s argument about its need for additional discovery.
Hr’g Tr., July 31, 2013, at 5:6-23.

Neither has the government

identified any “controlling or significant” legal changes
warranting reconsideration.

Negley, 825 F. Supp. 2d at 60.

The government argues that the Order was “based upon the
misapprehension that the Secret Service was previously permitted
to engage in full class discovery.”

Govt.’s Mot. at 2.

there is no misunderstanding about the facts.

However,

The initial

scheduling order “was not limited to class certification, it was
not limited to . . . experts on class certification; it was an
order that permitted, essentially, general discovery on liability
issues and everything else.”

Hr’g Tr., July 31, 2013 at 5:20-23;

see also Hr’g Tr., May 8, 2006 at 32:8-12 (“Simply put, there is
no basis that has been presented which would suggest that this
Court would appropriately exercise its discretion to . . .

- 5 otherwise limit discovery at this time.”).

Many of the

government’s arguments center on the inefficiency of conducting
merits discovery before class certification, e.g., Govt.’s Mot at
14 (citing the Federal Judicial Center Manual to contend that “it
is inefficient and inadvisable to require that all discovery
occur before a class has been certified”); id. at 2 (explaining
that discovery now “can be appropriately tailored so that it
focuses on only the certified claims”), but that is not at issue
here.

The government’s request to bifurcate class certification

and merits discovery was rejected, and discovery on both the
individual and class claims was ordered to proceed.

See Hr’g

Tr., May 8, 2006 at 32:8-12 (denying bifurcation); id. at 34:1416 (ordering plaintiffs’ and defendant’s discovery on individual
and class claims to begin immediately); Reply in Support of Mot.
for Reconsideration of Sept. 3, 2013, Order Denying PostCertification Fact & Expert Discovery (“Reply”) at 4
(acknowledging that discovery on the class claims was ordered in
2006).

The government’s need for the evidence for a trial on the

class claims, Govt.’s Mot. at 14, does not necessitate
reconsideration.

The government has had an ample opportunity to

explore the class issues since discovery closed in 2008, over a
year after the second amended complaint was filed in August 2006.
This discovery period was not limited to individual claims
discovery by the second amended complaint, the scheduling order,

- 6 or any other court orders.

Indeed, “there was no surprise that

this was going to end up being a class case.”

Hr’g Tr., July 31,

2013 at 8:17-22.
The government’s belated assertion that it was denied absent
class discovery by Magistrate Judge Robinson’s ruling, Govt.’s
Mot. at 6-7, 17, could -- and should -- have been squarely
presented before now.

Instead, the government merely asserted

that it had a right to additional discovery, and that it could
not engage in this discovery earlier because it did not know who
the potential witnesses were.

July 2013 JSR at 7; see also Hr’g

Tr., July 31, 2013 at 7:6-21.

Similarly, the government

initially only cited general cases that allowed fact and expert
discovery after the class certification discovery, cases which
were rejected as inapposite, see Hr’g Tr., July 31, 2013, at 5:718.

The government did not provide any legal authority

justifying its request for absent class discovery, nor did it
explain why the discovery it already had the opportunity to
conduct was insufficient.

A motion to reconsider is not “a

vehicle for presenting theories or arguments that could have been
advanced earlier.”

Clay v. District of Columbia, Civil Action

No. 03-466 (SBC), 2005 WL 1378768, at *1 (D.D.C. June 6, 2005).
The government repeatedly states that it believed that
“there would be post-certification discovery of absent class
members,” e.g., Reply at 5-8; Govt.’s Mot. at 7; July 2013 JSR at

- 7 8 (asserting that “[i]f pre-certification discovery was the only
discovery to be allowed in this class action case, the parties
should have been put on notice that no post-certification
discovery would be allowed”), but as is discussed above, there
was no indication that the government would be permitted to
engage in additional discovery after the discovery period had
ended.

Indeed, the government specifically requested that

discovery be revisited and a new schedule be set if the class was
ultimately certified, see May 4, 2006 Joint Status Report at 5, 5
n.3, but this request was rejected.
32:8-12.

See Hr’g Tr., May 8, 2006 at

While the government moved for reconsideration of that

order, the motion for reconsideration was denied without
prejudice in the July 7, 2006 Memorandum Opinion and the
government did not renew its objection.
The denial of the government’s motion to compel the
plaintiffs to produce information “about potential class members
prior to certification,” Reply at 5, does not compel another
conclusion.

Magistrate Judge Robinson did not say that

additional discovery from the absent class members would be
available later, the government did not then request that such
discovery be available later, and the government did not appeal
Magistrate Judge Robinson’s decision.

The government’s claims

about whether it received sufficient discovery, see, e.g.,
Govt.’s Mot. at 6, Reply at 5-6, from the plaintiffs during the

- 8 discovery phase is not at issue, nor is it relevant to
determining whether reopening discovery is appropriate.

See

Childers, 197 F.R.D. at 188 (listing factors relevant to
reopening discovery).

Moreover, it is not clear that the

government requested the same information then that it is
requesting now.

Compare Reply Ex. 4 (“What we’re seeking is

information that Plaintiffs currently possess regarding people
who are likely to be members of the class.”) with Govt.’s Mot. at
17 (asserting that the government should be able to now depose
absent class members that provided declarations as well as
“conduct related discovery about their assertions”).

Thus,

whether the government’s motion to compel written discovery from
the plaintiffs was denied has little bearing on whether the
government was previously foreclosed from pursuing the discovery
it now seeks.

Ultimately, the government provides no legal

authority that its own misapprehension about the scope of
discovery suffices to show either that discovery should be
reopened or that reconsideration should be granted.
In any event, even if reconsideration was justified and the
government raised this argument in its first request to reopen
discovery, the government has not sufficiently demonstrated that
it is entitled to absent class discovery.

The government, as the

requesting party, has the burden to show that discovery from
absent class members is warranted, because, for example, the

- 9 discovery is necessary or unavailable from the representative
parties.

See United States v. Trucking Emp’rs, Inc., 72 F.R.D.

101, 104-05 (D.D.C. 1976).

While the government now contends

that it was prevented from obtaining discovery about potential
class members and their claims by Magistrate Judge Robinson’s
ruling, see Govt.’s Mot. at 6-7, 17, the government still has not
answered the threshold question of why that discovery is
warranted.

The government rests on its argument that it “should

be provided the opportunity to depose these declarants who have
figured prominently in this case,” and because the members “‘may
be witnesses, [defendant] has the right to discovery beyond what
the absent class members have said to establish the factual
incorrectness of what they have said or to see if their
experiences were frequent or aberrational.’”

Govt.’s Mot. at 17

(alteration in original) (quoting Disability Rights Council of
Greater Wash. v. WMATA, Civil Action No. 04-498 (HHK/JMF), 2006
WL 2588710, at *1 (D.D.C. Sept. 7, 2006)).

This fails to

demonstrate why absent class member discovery is necessary or
unavailable from the representative parties, what particular
information is needed from the absent class members, or how that
information relates to the common class issues.

See, e.g.,

Barham v. Ramsey, 246 F.R.D. 60, 64 (D.D.C. Nov. 8, 2007)
(denying absent class discovery because “[t]he Court is not
persuaded this information is necessary” to resolve class issues

- 10 about the defendants’ motivations).

Without information about

how the discovery sought is relevant to the class issues, an
assessment cannot be made about the necessity of that discovery.
The government also has not shown that a legal error
occurred when the request to reopen expert discovery was
rejected.

Pueschel, 606 F. Supp. 2d at 85.

The government did

not offer any substantive arguments in support of its initial
request to reopen expert discovery.

See July 2013 JSR at 7; Hr’g

Tr., July 31, 2013, at 7:21-8:16 (stating that the expert did not
provide regression analysis but failing to state why the expert
did not conduct regression analysis earlier).

The government now

argues that “the Court had suggested that post-certification
discovery would be available,” e.g., Reply at 12, 12, but fails
to point to any representation by the Court that postcertification expert discovery would be available.

At best, the

government’s proffered citations refer only to later factual
discovery, not expert discovery.
at 5-9.

See Govt.’s Mot at 6-7; Reply

The government also offers the fact that “[t]he Court

did not address whether liability-stage expert class discovery
might later proceed, should a class ultimately be certified on
the basis of the pre-certification evidence, including that
provided by plaintiffs’ statistical expert,” id. at 7, as support
for this contention.

Because expert discovery was not limited to

particular claims and there was no representation that later

- 11 expert discovery would be permitted, this is insufficient to show
that a manifest injustice would occur without reconsideration.
The government’s attempt to re-litigate the same issues in its
motion for reconsideration does not satisfy Rule 54(b)’s
requirements, particularly when the government did not present
sufficient arguments supporting its initial request to reopen
discovery.

See Clay, 2005 WL 1378768, at *1.

Further, the government readily admits that it did not
initially request a more extensive expert report because, in
part, “the belief that the substantial cost of a regression
analysis could not be justified prior to the certification of a
class.”

Govt.’s Mot. at 8; see also Govt.’s Mot at 16 (repeating

that “only now are the parties finally in a position to
efficiently and cost-effectively evaluate statistically” the
plaintiffs’ claims).

The government also now argues that it

could not conduct expert analysis before because “the parameters
of any certified class were unknown,” Govt.’s Mot. at 7, and it
“would have needed to conduct countless analyses, most of which
would have been rendered useless.”

Govt.’s Mot. at 16.

These

strategic decisions offer no reason to reconsider the Order.
government does not demonstrate that there would be a manifest

The

injustice because of, for example, limitations in previous
rulings or scheduling orders that prevented it from conducting
the expert analysis it now desires before discovery closed.

- 12 Ultimately, regardless of whether bifurcation should have
occurred, bifurcation of discovery between class certification
and merits discovery did not happen.

The parties each made

strategic decisions with respect to which fact and expert
discovery in which to engage and from which to abstain.

Thus,

the government’s failure to engage in full merits discovery
before the class certification does not require either reopening
discovery, or reconsidering the decision denying the request to
reopen discovery.

Because no error infected the decision to deny

reopening discovery, and no manifest injustice will result from
that decision, the government has not established that justice
requires reconsideration.

Accordingly, it is hereby

ORDERED that defendant’s motion [757] for reconsideration
be, and hereby is, DENIED.

It is further

ORDERED that plaintiffs’ motion [769] for leave to file a
surreply is DENIED as moot.
SIGNED this 4th day of March, 2014.

/s/
RICHARD W. ROBERTS
Chief Judge